Judge Samuel Alito’s nomination to the Supreme Court has also raised concerns among environmentalists. Greenpeace, the National Environmental Trust, Earthjustice, Friends of the Earth and the Sierra Club have all publicly opposed Alito’s confirmation. [includes rush transcript]

Judge Samuel Alito’s nomination to the Supreme Court has also raised concerns among environmentalists. Greenpeace, the National Environmental Trust, Earthjustice, Friends of the Earth and the Sierra Club have all publicly opposed Alito’s confirmation

Transcript

This is a rush transcript. Copy may not be in its final form.

AMYGOODMAN: Judge Alito’s nomination to the Supreme Court has also raised concerns among environmentalists. Greenpeace, the National Environmental Trust, Earthjustice, Friends of the Earth, Sierra Club have all publicly opposed Alito’s confirmation. On Wednesday, Democratic Senator Feinstein of California asked Alito about his rulings in key environmental cases.

SEN. DIANNEFEINSTEIN: The Clean Water Act was passed in 1972, and it included a provision permitting citizens or citizen groups to bring lawsuits for violation of the act. In Public Interest Research Group of New Jersey v. Magnesium Elektron, a citizens environmental group sued a chemical manufacturer under the Clean Water Act for polluting a river used by members of the group. The trial court found that the defendant committed 150 Clean Water Act violations. On appeal, you were the decisive vote in a two-to-one decision overturning the trial court’s decision, even though it was undisputed that the defendant committed the 150 violations of the Clean Water Act.

Your decision, as I understand it, was based upon your conclusion that the environmental group did not have standing to sue under the Clean Water Act, because even though members of the environmental group had stopped using the river due to the pollution, they did not prove any injury to the environment. The decision, if broadly applied, would have gutted the citizen lawsuit provision of the Clean Water Act.

Now, three years later, in Friends of the Earth v. Laidlaw, the Supreme Court, in a 7-2 decision, rejected this reasoning and held that a citizen only needed to show that he or she was harmed by the Clean Water Act violation and didn’t need to prove a broader injury to the environment. So you see where the concern comes with respect to overthrowing something on a technicality that can have enormous implications. Do you agree with the Supreme Court’s decision in Friends of the Earth v. Laidlaw.

JUDGESAMUELALITO: Well, it’s a precedent of the court, and I have respect for it. And as you mentioned, and it’s governed by stare decisis, and as you mentioned, it was decided after the decision of my court in the Magnesium Elektron case, and I haven’t gone back and thought about the question of whether Laidlaw creates doubt about the soundness of the decision in Magnesium Elektron. If it does, then it does, and if the issue were to come up again before the Third Circuit, for example, and I sat on the issue, then I would follow Supreme Court precedent, if I concluded that it was in conflict with the decision of a prior court of appeals decision.

We have — our jurisdiction under the Constitution is limited to cases and controversies. The Supreme Court has said that means you have to have a plaintiff who has suffered injury in fact. And although there was a disagreement on the panel about the procedure we should use going forward, everybody on the panel agreed — Judge Roth and I, who were in the majority, and Judge Lewis, who dissented on a procedural point that I’ll get to — that the plaintiffs in that case had not even alleged personal injury. They alleged that they enjoyed the Delaware River in a variety of ways. As I recall, they walked along the canal path, they ate fish from the river, they drank water from the river. But there was no evidence that the discharges into a creek some distance upstream from the river had had any effect whatsoever on the river and, therefore, there was nothing to support a claim that they were personally injured by the discharges of this plant.

GLENNSUGAMELI: They include the exchange that you just heard, one of the major cases that we focused on in his record, in deciding for the first time since Robert Bork to oppose a Supreme Court nominee. That’s true for Earthjustice. It’s true for Sierra Club. It’s true for the other environmental groups that have joined us. This is an unusual step we’ve taken, and we’ve only taken it after looking at his record in detail. www.EarthJustice.org has a lot more details, but that exchange was very illuminating.

You saw that, even now, Judge Alito doesn’t get it. He’s refusing to admit that the Laidlaw Supreme Court case essentially overturned his decision. He’s only agreeing that as a Third Circuit judge, he would follow it, if it was inconsistent with his previous decision. He’s not saying what he would do on the Supreme Court and whether he agrees with the Laidlaw decision, which he was asked and refused to answer, or whether he would overturn it. So, it is an example of interpreting the Constitution in a way that prevents Congress from allowing people to go to court to enforce the law.

He also has an extreme view, which he was also asked about by Senator Feinstein the day before, on the interpretation of the Congress’s power to regulate interstate commerce. That’s the basis for almost all federal environmental laws, as well as civil rights laws, labor laws, consumer laws.

And he wrote a very lonely dissent, which he had very misleading testimony about, saying that a Reagan-signed law to ban possession of machine guns was beyond Congress’s authority under the Commerce Clause. He presented that as if it was a clear application of a Supreme Court precedent, ignored the fact that several other circuit courts from around the country had reached a different result before him, that the majority did in his case. The Supreme Court refused to review, all but eight times, those type of decisions. The only time a single court agreed with him, the Supreme Court immediately wiped it off the books, vacated it, remanded it, said 'Take another look at it.'

So, he’s not even suggesting, in light of all of that history, that maybe his opinion was wrong in Rybar. He’s still sticking by it. And he still has this extreme view of extremely limited congressional power, which is a real threat. Right now, the Supreme Court, by the end of June, will decide two cases under the Clean Water Act, where industry is claiming that long-standing protections for the vast majority of our streams and wetlands are unconstitutional. It should be wiped off the books. That’s a real issue.

JUANGONZALEZ: And your review of the judge’s record also indicates he brought in a major vote for — a decisive vote for W.R. Grace in a battle with the E.P.A. over drinking water emergency cleanup. Could you talk about that?

GLENNSUGAMELI: That’s right. It might be a "Don’t drink the water" message if he does get confirmed to the court. This was a case where the E.P.A. took emergency action under the Safe Drinking Water Act to protect the drinking water supply of Lansing, Michigan — 160,000 people — from a toxic spill from W.R. Grace. And he provided the decisive vote in a two-to-one decision to overturn that agency action, even though the dissenting judge stressed how decisions from his court, decisions from other courts, all required the court to be extremely deferential to E.P.A., to basically uphold the E.P.A., if at all possible.

He’s done that in another case, where he overturned a multimillion dollar fine imposed by E.P.A. against a polluter. So he has an overall record that falls into three categories: straight environmental cases, but also access to courts, reading the Constitution to not allow Congress to allow citizens to effectively enforce the environmental and other laws, and also, not to allow Congress to actually pass laws, including laws that have been in effect for a long time.

AMYGOODMAN: I wanted to turn back to Jamin Raskin, Professor of Constitutional Law at American University, author of Overruling Democracy: The Supreme Court vs. The American People, and ask about a question that kept coming up yesterday around the issue of Vanguard, Judge Alito’s participation in a 2002 federal case involving the mutual fund company Vanguard, in which he holds over $300,000 in personal investments. At the time, the case received little attention, but now it’s playing a central role in the confirmation hearings. A widow sued Vanguard, claiming she was entitled to money from a retirement fund belonging to her deceased husband. Alito agreed to hear the case, even though in 1990 in another confirmation hearing of his, he pledged to the Senate that he would recuse himself, because of his own personal investments, of any case involving Vanguard. Democrats kept pressing the issue about Alito’s integrity, because he did not recuse himself in this case, while Republicans have downplayed the issue. Your response?

GLENNSUGAMELI: Well, the judicial canons are pretty vague and open-ended with respect to recusal, and I think that’s something that we need to clean up to give them more precision and direction. But this case was clear, because he appeared before the Senate Judiciary Committee and pledged that he would recuse himself from any cases having to do with Vanguard. And then — it was typical of this nominee’s testimony over the last few days — they set forth a bunch of different alibis and explanations, including, 'Well, he said that just initially he would do it,' that is, for some unspecified period of years he would recuse. That was one argument. Then another argument was: 'Well, there was no chance that he would stand to benefit from the outcome in this particular case,' and so, there’s kind of a cloud of obfuscation that has surrounded it. But, in fact, he made a promise and a pledge, which he retreated from, precisely because he thought, you know, nobody was watching perhaps or it would be no big deal.

But what’s interesting to me is the way in which this is all about spin. It’s a struggle between content and form. If people actually read his opinions in the civil rights cases, in the sex discrimination cases, in the Fourth Amendment cases, which we haven’t talked about. In one of those, he found that a 15-year-old who was shot in the back of the head and killed by a police officer had not been "seized" within the meaning of the Fourth Amendment, and if he had been seized, he said, it was perfectly reasonable. All of these things, you know, add up to a very clear picture and a very clear pattern. And yet, it’s so hard to communicate that to people through all of the Machiavellian spin of the Republican media masters here. And what they’re putting up instead is this image of the immigrants’ son, and so on.

AMYGOODMAN: Ted Shaw, we only have 30 seconds. You’re going to be testifying tomorrow. What do you expect will happen? Do you think Samuel Alito will be confirmed?

TEDSHAW: Well, you know, opposing a Supreme Court nominee is always an uphill fight, but particularly when the party in control of the White House also controls the Senate. So, I would — if I were a betting man, I still would not bet against confirmation. At the same time, this is a vigorous fight, and you just don’t know what’s going to happen until it happens. Everybody’s thinking about whether there’s going to be a filibuster and what the gang of fourteen will do and all of that. All I know is that we have to fight these nominees one at a time, if they are as bad as we think this one is. And if you fight, you might have a chance of winning. If you don’t fight, you’ll never win.

AMYGOODMAN: Ted Shaw, I want to thank you very much for being with us, President of the NAACP Legal Defense and Educational Fund; also Jamin Raskin, Professor of Constitutional Law at American University; and Glen Sugameli of Earthjustice. Thanks for joining us.

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